* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 8 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. RICARDO RODRIGUEZ-OROZCO, aka Ricardo Rodriguez-Orosco; aka Ricardo Rodriguez-Catalan; aka Ricardo Rodriguez-Aguila; aka Richard Velasquez; aka Jose Rodriguez; aka Ricardo Flores-Aguila,

Defendant-Appellant. No. 97-4049 (D.C. No. 95-CR-81-W) (D. Utah)

ORDER AND JUDGMENT *

Before BRORBY , BARRETT , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral1 Section 1326 addresses the criminal penalties to be imposed on certain

aliens who have illegally reentered the United Stat es after deportation. Aliens, such as Mr. Rodriguez-Orozco who was deported follo wing his convictions for aggravated felonies, shall be fined or imprisoned n ot more than 20 years, or both. Seeid. § 1326(b)(2). -2- argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Defendant Ricardo Rodriguez-Orozco pled guilty to acharge of illegal reentry into the United States by a deported alien following conviction of an aggravated felony in violation of 8 U.S.C. § 1326. 1 He entered his plea pursuant to Fed. R. Crim. P. 11(a)(2) reserving his right to appeal the court’s denial of his motion to dismiss the indictment on double jeopardygrounds. The court sentenced Mr. Rodriguez-Orozco to seventy-seven months’ imprisonment and thirty-six months’ supervised release. Mr. Rodriguez-Orozco was initially deported in 1988 , after he was convicted in state court of two counts of unlawful distribution of a controlled substance. In 1991, he entered a guilty plea to a charge of illegal reentry after deportation. In 1993, he was again deported. He w as then found to be unlawfully in Salt Lake City in 1994. The court denied Mr. Ro driguez-Orozco’s motion to dismiss the indictment charging him with illegal re entry on the grounds of double jeopardy. At sentencing on this latest illegal ree ntry charge, the district court increased his offense level four levels based on th e 1988 convictions.-3-

In his motion to dismiss, Mr. Rodriguez-Orozco argu ed that he could not be charged under § 1326 because to do so would punish him again for the 1988 aggravated felony convictions and violate double je opardy. Mr. RodriguezOrozco urges us not to follow our case of United St ates v. Valdez , 103 F.3d 95 (10th Cir. 1996), which held that § 1326 was a sent ence enhancement provision and not a separate criminal offense, but rather to follow the Ninth Circuit’s case of United States v. Campos-Martinez , 976 F.2d 589 (9th Cir. 1992). We decline to do so. “We cannot overrule the judgment of another panel of this court. We are bound by the precedent of prior panels absent e n banc reconsideration or a superseding contrary decision by the Supreme Court. ” In re Smith , 10 F.3d 723, 724 (10th Cir. 1993) (citations omitted).
In Valdez , we held that 8 U.S.C. § 1326(b) was a penalty enh ancement provision. See id. 103 F.3d at 96. We specifically declined to follo w Campos-Martinez . See id. ; see also United States v. Valenzuela-Escalante , No. 96-4147, 1997 WL 751586, at *4 (10th Cir. Dec. 5, 1997). Because § 1326(b) is an enhancement provision, double jeopardy concerns are not implicated. Cf. United States v. Hawley , 93 F.3d 682, 688 (10th Cir. 1996) (two-level enhancement for failure to appear is notpunishment for purposes of double jeopardy).

Recidivist sentencing has been part of the criminal justice system since the founding of the nation, an d it-4- has been sustained against all manner of double jeo pardy claims. The essential point is simple: a sentence enhanced by reference to a prior conviction is not a “second punishment” for the first crime. It is a punishment for the new crime, tailored to the offen der’s circumstances in light of knowledge that higher penalties are needed to deter persons who have not responded to lesser sanctions. [Defendant]’s observation that the sentence depends in part on th e evidence that led to his prior conviction is irrele vant . . .

. United States v. Shaw , 26 F.3d 700, 701 (7th Cir. 1994) (citations omitt ed). The judgment of the United States District Court fo r the District of Utah is AFFIRMED.

Entered for the Court

James E. Barrett Senior Circuit Judge